Citation Nr: 1142537
Decision Date: 11/17/11 Archive Date: 11/30/11
DOCKET NO. 08-13 885 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne, Wyoming
THE ISSUE
Entitlement to service connection for heart disease, to include as secondary to service-connected diabetes mellitus, type II.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
E. Pomeranz, Counsel
INTRODUCTION
The Veteran had active service from September 1963 to October 1971 and from April 1981 to February 1984.
This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2008 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Cheyenne, Wyoming.
In November 2008, while sitting at the RO, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Veteran's claims folder.
After remanding this case in January 2009, the Board denied the Veteran's claim of entitlement to service connection for heart disease, to include as secondary to service-connected diabetes mellitus, type II, in a July 2010 decision. Subsequently, the Veteran submitted a timely appeal of this adverse decision to the United States Court of Appeals for Veterans Claims (Court). While this case was pending before the Court, the Office of General Counsel for VA, on behalf of VA, and the Veteran, by and through his representative, filed a Joint Motion for Remand (Joint Motion), dated in February 2011. In the Joint Motion, the parties recognized the Office of the Chairman of the Board Memorandum, No. 01-09-25 (Memorandum), dated in November 2009, which predated the Board's July 2010 decision. The Memorandum required the Board to stay action on all claims for service connection that could not be granted under current law but that potentially might have been granted based on the planned new presumptions of service connection for ischemic heart disease based upon exposure to herbicides used in the Republic of Vietnam during the Vietnam War Era. The parties maintained that because the Veteran's claim for service connection for heart disease was not stayed and was denied by the Board in July 2010, the Board erred by failing to implement or discuss the November 2009 Memorandum. According to the parties, VA published a final rule in the Federal Register on August 31, 2010, that amended 38 C.F.R. § 3.309 to add ischemic heart disease to the list of diseases subject to presumptive service connection based on herbicide exposure. Thus, the parties requested that the Court vacate and remand the case to the Board for readjudication in compliance with the Joint Motion. In an Order, dated in February 2011, the Court granted the Joint Motion, vacated the July 2010 Board decision, and remanded the case to the Board for readjudication of the claim consistent with the considerations discussed in the Joint Motion.
FINDINGS OF FACT
1. The Veteran served on active duty in the Republic of Vietnam during the Vietnam era and is presumed to have been exposed to herbicides.
2. Given that the Veteran has diagnoses of coronary artery disease and ischemic heart disease, he has therefore been shown to have a disease that is presumed to be the result of his conceded in-service herbicide exposure.
CONCLUSION OF LAW
Coronary artery disease/ischemic heart disease is presumed to be due to the Veteran's conceded in-service exposure to herbicides. 38 U.S.C.A. §§ 1110, 1112, 1113, 1116 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2011); 75 Fed. Reg. 53,202 (Aug. 31, 2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).
As discussed in more detail below, sufficient evidence is of record to grant the Veteran's claim for service connection for coronary artery disease/ischemic heart disease. Therefore, no further development is needed with regard to this issue.
Similarly, also as discussed in further detail below, a change in law has occurred during the pendency of this appeal. However, as the Board will grant the benefit sought under this change in law, there is no prejudice to the Veteran in proceeding to issue this decision. See Bernard v. Brown, 4 Vet. App. 384 (1993).
II. Service Connection
At the outset, the Board acknowledges that, throughout the current appeal, the Veteran has contended that he has coronary artery disease that was caused by and/or aggravated by his service-connected diabetes mellitus, type II. However, further review of the claims folder indicates that the agency of original jurisdiction has considered the Veteran's service connection claim on both direct and secondary bases. In addition, as will be discussed in further detail in the following decision, the relevant law pertaining to veterans who served in the Republic of Vietnam during the applicable time period and who later developed ischemic heart disease (to include coronary artery disease) has recently (and, during the current appeal) changed in such a manner as is favorable for the Veteran in the current appeal. Because the Board finds that this new law warrants the grant of service connection for the Veteran's coronary artery disease on a direct (e.g., presumed) basis, the Board finds that there is no need to discuss whether service connection for this disability is warranted on a secondary basis.
Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). If a veteran was exposed to a herbicide agent during active military, naval, or air service, certain diseases shall be service connected if the requirements of 38 U.S.C.A. § 1116 of 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e) (2011). In this regard, it is noted that a "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f) (West 2002 & Supp. 2011); 38 C.F.R. § 3.307(a)(6)(iii) (2011).
In the present appeal, the Veteran's DD 214, Armed Forces of the United States Report of Transfer or Discharge, indicates that he had active duty in the Republic of Vietnam from September 1968 to May 1970. He is, therefore, presumed to have been exposed to herbicides during such service. See id.
Under the authority granted by Congress in the Agent Orange Act of 1991 and the Veterans Education and Benefits Expansion Act of 2001, the Secretary has placed ischemic heart disease on the presumptive list to the list of diseases associated with herbicide exposure. See 75 Fed. Reg. 53,202 (Aug. 31, 2010). Arteriosclerotic heart disease is used as a narrower synonym of ischemic heart disease. Dorland's Illustrated Medical Dictionary 528 (30th ed. 2003). Coronary artery disease is atherosclerosis of the coronary arteries. Id., at 531. Thus, coronary artery disease is encompassed within the condition listed on the presumptive list.
In this case, post-service medical records show abundant evidence of a diagnosis of coronary artery disease. In a March 2007 VA examination report, the Veteran was diagnosed with coronary artery disease. The examiner noted that the Veteran was initially diagnosed with coronary artery disease in March 2002. In a May 2007 VA examination report, the examiner stated that the Veteran had coronary artery disease with myocardial infarction that was treated with angioplasty and stenting. In the December 2007 and March 2009 VA examination reports, he was once again diagnosed with coronary artery disease. In addition, the Board observes that in a VA Medical Center (VAMC) outpatient treatment record, dated in February 2010, and a March 2010 VA examination report, the Veteran was diagnosed with ischemic heart disease. Thus, the evidence of record clearly shows that the Veteran has current diagnoses of coronary artery disease and ischemic heart disease.
In light of the above, specifically the Veteran's conceded exposure to herbicides during his active duty in the Republic of Vietnam as well as his current diagnoses of coronary artery disease and ischemic heart disease, the Board finds that service connection for coronary artery disease/ischemic heart disease is warranted on a presumptive basis. Therefore, the appeal is granted. 38 U.S.C.A. §§ 1110, 1116; 38 C.F.R. §§ 3.303, 3.307, 3.309(e) (effective August 31, 2010).
ORDER
Service connection for coronary artery disease/ischemic heart disease is granted.
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V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs